The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Monday, December 10, 2012

Hold Me

If this blog teaches you anything it is (hopefully) this:
that the practice of law rarely looks like what you see in the media. No telegenic lawyers pushing for justice and
fundamental human rights against a system that is still sorting out the
essential constitution from mere politics.
No screaming, over-the-top litigators telling the system that “it’s outta order.”

No, there is nothing like that in the day-to-day
practice. Instead, it is a bunch of
(mostly) well-intentioned attorneys trying to make the best arguments in favor
of their client’s interest and a court system that is simply trying to get it
right.

But every now and then there is a case that shows the drama
of the law and the pathos of life wrecked upon the shores of the legal system.

Today’s case concerns a bail hearing. Defendant was arrested and charged with
aggravated domestic assault, furnishing alcohol to a minor, and violating
conditions of release. The State sought
to have him held until trial without bail.
The Defendant objected. The trial
court approved the State’s motion, and the Defendant appealed, as allowed in
bail hearings, to a single justice of the SCOV for an immediate hearing.

The sole question on appeal is whether Defendant should be
held without bail until his trial.

A court can only deny bail if:

Defendant was charged with
a felony involving an act of violence against another person;

Evidence of guilt is great;

Defendant’s release poses
a substantial threat of physical violence to any person; and

No condition or combination
of conditions of release will reasonably prevent the physical violence.

The last two elements must be shown with clear and
convincing evidence. That means the
threat has to be much more than a simple potential, and the conditions to
control must be substantially lacking.

The SCOV begins with a recitation of the facts in the
case. These are largely uncontested and
based off both police and eyewitnesses to the scene.

Defendant was at home with his girlfriend when the two found
themselves in an argument. Defendant who
has post-traumatic stress disorder was, apparently, also consuming large
amounts of alcohol. As the evening went
on the arguments became louder and louder and increasing intensity.

When Defendant’s neighbor arrived home at midnight, Defendant
and girlfriend were merely engaged in loud talking, and the neighbor asked them
to quiet down. They didn’t. The noise increased, and girlfriend told
neighbor that Defendant had hurt her.

More screaming and crashing followed. The girlfriend pleaded for Defendant not to
hurt her, and neighbor dialed 9-1-1. The
cries increased with Defendant’s threats toward girlfriend including a promise
to put out her eyes.

When the police arrived minutes later, the scene was
worse. Screams and growls emanated from
behind Tenant’s apartment door. The
police kicked down the door and found Defendant choking girlfriend. Girlfriend was unconscious with blood around
one eye.

When police ordered him to stop, Defendant kept growling and
choking Defendant. Police tried to force
Defendant to stop, but Defendant resisted.
The responding officer later testified that this was the worst domestic
assault case he had ever witnessed in 26 years on the force. If police had arrived a few minutes later,
the officer was convinced that Defendant would have killed girlfriend.

After processing 25 minutes later, police found that
Defendant blood alcohol was .218. To put
it in perspective, .08 is too impaired to drive and .4 is considered deadly. Moreover, Defendant was on a court-ordered
release from another conviction that required him to keep away from alcohol.

For the SCOV this is enough evidence to establish the basis
for no bail: violent felony against another person and high likelihood guilt. The SCOV also finds that there is a substantial
threat of violence to others given the unprovoked and animalistic nature of
Defendant’s rage.

The sole question is whether there are conditions available
for release that would prevent such violence.
To that end, Defendant’s mom comes forward. Mom resides at a Buddhist monastery in
Calais, Vermont. She represented that
alcohol was not allowed in the monastery, that she would watch over her boy,
and that she knew enough martial arts to defend herself from his rages.

This is not enough for the SCOV. The monastery is a semi-public place where
others come and go. Alcohol is
ubiquitous in our society. Merely
because it is not available at the monastery does not prevent Defendant from
heading down to the Maple Corners Package Store and loading up with some 40s of
St. Ides. There is nothing in mom’s
proposal to either keep or enforce Defendant’s terms of release. Defendant through his behavior has already
shown an inability to comply with the terms of release, and there is no reason
to think that motherly love and eastern meditative calm with act to prevent
further relapses and outbreaks.

In the end, mom’s offer is not enough and the trial court’s
denial of bail is affirmed. Defendant
can practice meditation in the county jail until at least trial.

Given the sad facts, it is certainly no fault to the mother
for trying to get custody of her son.

Nevertheless, it appears that the extreme
violence of Defendant’s crime would require much more stringent and controlled
terms of release that go beyond what the abbot of a Buddhist monastery can offer and
not-offer.